EEOC Updates COVID-19 FAQ’s to Reflect End of Pandemic
Following the official ending of the COVID-19 public health emergency, the U.S. Equal Employment Opportunity Commission (“EEOC”) released a number of key updates to its COVID-19 technical assistance document, “What you Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (“Updated Guidance”) on May 15, 2023. The Updated Guidance seeks to clarify how the ongoing impacts of COVID -19 intersect with federal discrimination law, including :
- The end of the COVID-19 public health emergency does not allow employers to automatically terminate reasonable accommodations provided due to pandemic-related circumstances. However, employers may re-evaluate accommodations granted during the public health emergency, and, in consultation with the employee, assess whether there continues to be a need for a reasonable accommodation based on individualized circumstances;
- The Updated Guidance provides non-exhaustive examples of reasonable accommodations for employees with long COVID, including a quiet workspace, use of noise cancelling devices, and uninterrupted worktime to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath. Many of these are low or no-cost accommodations;
- The Updated Guidance includes tips about remaining alert for COVID-related harassment of applicants or employees with a disability-related need to continue wearing a face mask or take other COVID-19 precautions at work;
- Employers may continue ask whether an employee who calls in sick or exhibits common symptoms as identified by the CDC has COVID-19. Additionally, employers may ask if employees have been tested for COVID-19 (and if so, about the result). If such employee has tested positive for COVID-19 or has symptoms of the disease, the employer may follow any CDC-recommended period of isolation and/or exclude the employee from the workplace;
- Temperature readings must meet the ADA standard of a “business necessity,” as they are considered medical examinations. However, the ADA does not prevent employers from following recommendations by the CDC regarding whether, when, and for whom testing is appropriate, because following such CDC recommendations will meet the ADA “business necessity” standard;
- The Genetic Information Nondiscrimination Act (“GINA”) does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease; and
- An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as the employer does so for all entering employees in the same type of job.
As stated in the Updated Guidance, employers should regularly consult and continue to rely on CDC guidance regarding symptoms associated with COVID-19 as well as isolation periods for infected individuals. Additionally, employers should review any existing COVID-19 policies to ensure that they are consistent with the Updated Guidance as well as CDC recommendations for COVID-19. If you have any questions related to your policies or workplace practices, please contact any Franczek attorney.